The rise of social media has given rise to influencers who have become a major force in the marketing of products and services. Influencers are often paid to promote a brand and their influence can have a significant impact on a product’s success. With this power comes a certain degree of responsibility, particularly when it comes to the accuracy of the claims they make.
The law states that influencers have a duty to be honest and accurate in their promotions. This is especially true when it comes to advertising certain products, such as drugs and supplements. Those who break the law may be liable for misleading consumers and can face significant legal consequences.
In order for an influencer to be liable for inaccuracies, the law states that there must be a direct relationship between the influencer and the endorser. For example, if an influencer posts a product endorsement without disclosing any financial or legal relationship, then they could be held liable for any false claims they make. Additionally, an influencer can be held liable if they make a false claim that they know to be false or if they have failed to exercise good judgment in their promotion.
The Federal Trade Commission (FTC) is responsible for enforcing the law regarding false advertising. They have created the Endorsement Guide which outlines the legal requirements for influencers. The guide states that influencers must clearly disclose any material connection between the influencer and the endorser. This means that influencers must reveal any financial connection or any special benefits they are receiving from the product or service they are endorsing.
The FTC also states that influencers must use caution when making a claim about a product or service. If an influencer makes a false claim, then they can be held liable for any harm caused to the public. Furthermore, if the influencer does not have adequate evidence to back up their claims, then they can be held liable for any financial losses suffered by a company as a result of their promotion.
Conclusion
Influencers have a duty to be honest and accurate in their promotions. They should also be aware of the legal requirements of the FTC Endorsement Guide and must always disclose any material connection between themselves and the endorser. If an influencer fails to do so, then they can be held liable for any inaccuracies they make in their promotions.
Video Transcript
In this video, you get answers to these questions:
- Are influencers responsible for ensuring the accuracy of the content they post?
- What is the difference between sharing personal experience and giving professional advice as an influencer?
- Can an influencer be held liable for providing medical advice without a license or medical training?
- What legal recourse do consumers have if they follow advice from an influencer outside their area of expertise and suffer negative consequences?
- Can an influencer be held liable for posting inaccurate information if they share a disclaimer or statement that they are not an expert in the subject matter?
Today, many business owners are influencers. In other words, not only are influencers running businesses, but business owners are realizing the importance of being an influencer, being out there and available to the public. So today’s question relates to business owners and influencers alike. When can influencers be liable for inaccuracies?
All right, so let’s say that you have a channel about makeup, style, fashion, cosmetics, etc. And you decide to talk about how to wash your face and a routine for washing your face. And let’s say that you suggest using some bleach in washing of your face. Now maybe you don’t make it really clear that it is just a drop of bleach, and so then some viewer watches your video and says, “Oh, this influencer washes her face every morning with bleach. I need to do that.” So she fills up a bowl of bleach, starts putting it on her face, rubbing it in. Her eyes sting, and let’s just imagine, frankly, I don’t even know how awful that would be on the skin and the eyes, but let’s just imagine that it causes significant harm. The question then is, is the influencer liable for not being clear about the quantity of bleach? For example, if the influencer put one drop of bleach in a bowl of water and wasn’t clear, and a reasonable viewer could assume that the entire bowl was bleach and thus it was safe to use. So that’s one example.
Here is another example. Imagine you have a channel where you are talking about nature and you talk about how to identify a mushroom that it is edible and safe to eat, but you are wrong. You identify the wrong mushroom, or you are not real clear about certain aspects. Somebody eats the wrong mushroom and dies or gets extremely sick. Can you be liable as an influencer?
Here is another example. Let’s say you go on as an influencer and start giving medical advice. Let’s say, you know, the advice is probably correct, but you are pretending to be a doctor when you are not. Now, you may not say overtly that you are a doctor, but you have a nice little white doctor’s coat on. Maybe it has your name right here. Maybe you have a little name tag, maybe a stethoscope around your neck. You are giving the impression that you are a medical doctor or at least somebody with medical training. And let’s assume for this scenario that you don’t have that. Can you be liable if people follow your advice, on a video or on a blog post or some other social media post and they are hurt?
One final example. Imagine that you are giving advice for people on how to avoid paying taxes. Let’s say that you believe that it is a legitimate advice. That it is proper advice, and let’s assume maybe it even is proper, but you don’t have a license. You are not a CPA. You are not a tax attorney. You don’t have proper authorization in states to be giving tax advice. To what extent could you be held liable?
All right. I am going to talk about each one of those scenarios. My name is Aaron Hall. I am an attorney. I represent business owners and entrepreneurial companies. If you don’t yet have a free handout I give for small business owners to avoid common legal problems, you can get it at aaronhallcom/free. And not only do you get a PDF, but you will get follow-up emails with exclusive videos just for subscribers educating you on how to avoid common pitfalls in your company.
All right, let’s talk about each one of those scenarios. The bottom line is you can be liable in each one of the scenarios I presented. So if you are not clear about how much bleach to put in water before washing your face, people take advice and then they harm themselves. You could be held liable for negligence. You were negligent in being specific about how much bleach is in the bowl you are recommending people use to wash their face. With negligence, what would have to happen there is a jury or a judge would have to determine that a reasonable person in your shoes would have explained to viewers how much bleach to put in, especially considering the dangers associated with too much bleach. Thus, you had a duty to act as a reasonable person would. You did not, and so you are liable for the harm.
Let’s talk about the mushroom identification. This is very similar. This would basically be you being held liable for negligent misrepresentation. So again, it is an element of negligence, and it is misrepresenting something. Misrepresenting something about the mushroom. Unlike the bleach scenario, where you failed to state something, with the mushroom scenario, you said you misstated something. You made a statement that was false. You didn’t know it was false; it was an accident. You could call it an honest mistake. But if a judge or jury believes that a reasonable person would have made sure that they give correct, accurate information instead of false information, especially when it relates to the potential of a poisonous mushroom, then you can be held liable for negligent misrepresentation.
Now let’s talk about the doctor example. You are making yourself appear like a doctor or at least somebody with medical training and medical expertise. You have a stethoscope; you have a doctor’s robe, etc., or uniform. Even though you didn’t say you are a doctor, are you liable for that sort of misrepresentation? You could be. The answer is that could be fraud. You are intentionally misleading people to suggest you have expertise that you don’t have. I get very frustrated when I see this on YouTube. I will see people pretending to be experts when they are not actually experts or pretending to have credentials that they don’t actually have. That can be fraud, otherwise known as intentional misrepresentation.
Finally, let’s say someone’s giving out tax advice, or it could be medical advice or could be legal advice. Anybody who is giving out advice that requires a license to give such advice. Maybe liable for acting without a license. Sometimes, for example, with lawyers, if you are practicing law without a license, it is considered the unauthorized practice of law. That is why it is so important to be really clear. If you are just giving educational information and you are encouraging people to consult with their respective professional advisors prior to acting on your advice.
Are Influencers Responsible for Ensuring the Accuracy of the Content They Post?
All right. Let’s answer some frequently asked questions in this area. Are influencers responsible for ensuring the accuracy of the content they post? The short answer is influencers are responsible for being reasonable, and that means reasonably ensuring the accuracy of the content of their post. What’s reasonable? That is decided by a judge and a jury. And so it really depends on the circumstances of the situation.
What Is the Difference Between Sharing Personal Experience and Giving Professional Advice as an Influencer?
So say, for example, you said, when I put this particular solution on my skin, I had these results. That is most likely a true statement, and it is going to be difficult for you to get in trouble for that statement alone. It is when you say, “So you should put this on your skin, and you will probably have results similar to mine.” That is where influencers can get into trouble.
Can an Influencer Be Held Liable for Providing Medical Advice Without a License or Medical Training?
Absolutely. States could go after an influencer for providing information in that state that people are acting on. Now, are state boards going to go after that? They usually only go after it if they start getting a lot of reports of harm from people acting on improper advice from a person who is an influencer or suggesting that there is some sort of resource or expert on the topic.
What Legal Recourse Do Consumers Have If They Follow Advice from an Influencer Outside Their Area of Expertise and Suffer Negative Consequences?
Well, you can sue. If you relied on the advice of another person and they were negligent, and they knew you were relying on that advice. Even if it is on a YouTube channel or it is an influencer posting on some social media platform, that influencer may be liable for the damages caused by the negligence of that influencer and your reliance on that. That is a situation where you need to consult with an attorney to see how strong is your claim and what are the defenses and other relevant doctrines that may apply.
Can an Influencer Be Held Liable for Posting Inaccurate Information If They Share a Disclaimer or Statement That They Are Not an Expert in the Subject Matter?
A disclaimer can go a long way. It isn’t necessarily going to entirely solve the problem, especially if the influencer is intentionally falsely stating something. What happens in these cases is a jury looks or a judge looks at the influencer’s activity and says, “Did they do as a reasonable person would?” And you might say, “Reasonable person? How do we know what a reasonable person would do?” Well, there is some guidance provided by the judge, but ultimately, it is going to come down to the perspective of the jurors or the judge. And so that is why with influencers, there are risks that you could get a judge or jury to say, you did not act reasonably, you were negligent. And even though there was some sort of disclaimer, that disclaimer wasn’t enough; there are many cases that say a disclaimer alone isn’t necessarily enough. You are going to look at all the facts and circumstances of a case before deciding whether negligence was committed.
Conclusion
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